Opinion
No. NNH CV 10 6010980
January 24, 2011
MEMORANDUM OF DECISION RE MOTION TO DISMISS
The plaintiffs, Charles J. Riether, Thomas Riether and Mary Jane Lazaroff, appeal from the 1994 decree of the East Haven Probate Court that approved an adult adoption. Pursuant to this decree Anna Sorenson, an 83-year-old aunt of the plaintiffs, adopted Janet Perrotti, the principal defendant, a 42-year-old woman who is an attorney. According to the amended complaint, Perrotti obtained this adoption through fraud, misrepresentations and undue influence. It further alleges that Sorenson was unrepresented in the adoption proceedings and lacked the mental capacity to consent to the adoption. The adoption's purpose, according to the plaintiffs, was to make Perrotti the sole heir to Sorenson's estate, which was later achieved through Sorenson's will dated July 6, 1995. Sorenson died in February 2009, and Perrotti submitted Sorenson's will to the Probate Court in a separate proceeding. The plaintiffs claim that Sorenson's estate would have been divided equally among them if not for this will and improper adoption.
Michael Albis, the current judge of probate for the town of East Haven, is also named as a defendant. Any reference to the "defendant" herein will refer to Perrotti only.
On June 15, 2010, the defendant filed a motion to dismiss the plaintiffs' complaint on the grounds that the plaintiffs lacked standing because (I) Connecticut's adult adoption statutes, General Statutes §§ 45a-734 and 45a-735, do not provide statutory standing to the plaintiffs, and (2) the plaintiffs' status as family members and potential heirs also do not confer them standing. On August 31, 2010, the plaintiffs filed a memorandum of law in opposition, arguing that the adoption statutes do not prohibit the plaintiffs' action and claiming they are classically aggrieved because the defendant's malfeasance removed them as heirs to Sorenson's estate. On June 25, 2010, the plaintiffs filed a request for leave to amend their complaint. On September 9, 2010, the defendant filed a reply, which argued that the court could not consider the amended complaint until after adjudicating the motion to dismiss. The court heard oral argument on September 13, 2010. On September 27, 2010, the plaintiffs filed a further reply.
LEGAL ANALYSIS
"The right to appeal from a decision of the Probate Court is statutory . . . It is a familiar principle that a court which exercises a limited and statutory jurisdiction is without jurisdiction to act unless it does so under the precise circumstances and in the manner particularly prescribed by the enabling legislation . . . Our courts of probate have a limited jurisdiction and can exercise only such powers as are conferred on them by statute . . . They have jurisdiction only when the facts exist on which the legislature has conditioned the exercise of their power . . . The Superior Court, in turn, in passing on an appeal, acts as a court of probate with the same powers and subject to the same limitations . . . In acting on an appeal from probate, the Superior Court does not exercise the jurisdictional powers vested in it by the constitution but, instead, exercises a special and limited jurisdiction conferred on it by the statutes." (Citations omitted; internal quotation marks omitted.) Corneroli v. D'Amico, 116 Conn.App. 59, 63, 975 A.2d 107, cert. denied, 293 Conn. 928, 980 A.2d 909 (2009).
"A motion to dismiss . . . properly attacks the jurisdiction of the court, essentially asserting that the plaintiff cannot as a matter of law and fact state a cause of action that should be heard by the court." (Internal quotation marks omitted.) Heussner v. Hayes, 289 Conn. 795, 802, 961 A.2d 365 (2008). "Such a motion may be granted only where it clearly appears on the face of the entire record that the court is without jurisdiction." Baskin's Appeal from Probate, 194 Conn. 635, 639 n. 4, 484 A.2d 934 (1984).
I. AMENDED COMPLAINT
As a threshold issue, the court must determine whether it can rely upon the plaintiffs' amended complaint. On June 25, 2010, a date after the defendant filed her motion to dismiss, the plaintiffs requested leave to amend their complaint pursuant to Practice Book § 10-60. The stated reason for filing the amended complaint was to clarify the issue of aggrievement. The plaintiffs maintain that the amended complaint is now the operative complaint because the defendant failed to file any objection to their leave to amend within fifteen days of their request. The defendant contends that once the issue of subject matter jurisdiction is raised, the court cannot consider a motion to amend or any objection to it until after the jurisdictional issue is resolved. For this proposition, the defendant cites opinions from civil actions such as Gurliacci v. Mayer, 218 Conn. 531, 545, 590 A.2d 914 (1991) and Federal Deposit Ins. Corp. v. Peabody, N.E., Inc., 239 Conn. 93, 99-100, 680 A.2d 1321 (1996), as opposed to probate appeals.
Practice Book § 10-60 states in relevant part: "If no objection [to the request for leave to amend] has been filed by any party within fifteen days from the date of the filing of said request, the amendment shall be deemed to have been filed by consent of the adverse party."
Nevertheless, "appeals from probate differ from civil actions, and . . . they are not adversarial actions between parties." Heussner v. Hayes, supra, 289 Conn. 805. "Failure fully to describe a claimant's interest in a probate decree is not a flaw that deprives the Superior Court of subject matter jurisdiction." Flor v. Pohl, 95 Conn.App. 555, 558, 899 A.2d 46 (2006). "Although aggrievement is a jurisdictional necessity . . . [i]f an appellant is aggrieved but fails to show the basis for that aggrievement in the motion to appeal, the appeal is merely voidable." (Internal quotation marks omitted.) Id. In a probate appeal, "where the question is merely the sufficiency of the pleading rather than the existence of a viable cause of action," the "motion to dismiss should [be] denied because the plaintiff should [be] afforded an opportunity to amend her appeal." (Internal quotation marks omitted.) Id., 561, citing Baskin's Appeal from Probate, supra, 194 Conn. 635. Though "[a] plaintiff's failure to state such reasons might in some instances render his appeal subject to being struck . . . dismissal is not proper unless it is undisputed as a question of fact that such reasons do not exist." Baskin's Appeal from Probate, supra, 194 Conn. 641 n. 9; see also Doyle v. Reardon, 11 Conn.App. 297, 305-08, 527 A.2d 260 (1987) (finding that the plaintiff could not have pleaded further facts that would have established aggrievement, particularly given his existing allegations in his reasons for appeal).
Subsequent to Flor, the probate statutes were amended substantially by No. 07-116 of the 2007 Public Acts, but not in a manner that supersedes Flor's holding. In particular, P.A. 07-116 repealed General Statutes § 45a-191, which formerly provided in relevant part: "In each appeal from probate . . . the interest of the appellant shall be stated in the motion for appeal, unless such interest appears on the face of the proceedings and records of such court of probate." Instead, probate appeals are now "commenced by filing a complaint in the superior court," and "[t]he complaint shall state the reasons for the appeal" with "[a] copy of the order, denial or decree" attached to the complaint. General Statutes § 45a-186(a). The procedure is essentially the same, except that a complaint rather than a motion for appeal is required. The plain text of the amended statute does not suggest that appellants cannot amend their complaints to establish aggrievement. Moreover, pursuant to § 45a-l86(b), the failure to serve the complaint on interested parties "shall not deprive the Superior Court of jurisdiction," indicating that the legislature continues to treat probate appeals differently than civil actions. See also Gates v. Gates, 51 Conn.Sup. 148, 151, 975 A.2d 147 [ 46 Conn. L. Rptr. 102] (2008), aff'd., 115 Conn.App. 293, 971 A.2d 852 (2009).
Considering that the probate statutes have been revised recently to require plaintiffs to commence probate appeals by complaint rather than by motions to appeal, it is an open question whether the specific requirements of Practice Book § 10-60, namely, the defendant's failure to file an objection within fifteen days, now apply to complaints in probate appeals. Nevertheless, this court does not need to reach this issue, as courts, for probate appeals, may allow amended complaints even with a pending motion to dismiss if it is possible for the plaintiffs to allege sufficient facts to establish aggrievement. Given that the plaintiffs' original complaint was only two pages long and lacked detailed allegations of aggrievement, this court cannot conclude that it would be impossible for the plaintiffs to allege further facts to establish aggrievement. Accordingly, the plaintiffs' motion for leave to amend is granted, and the court will consider the plaintiffs' amended complaint in adjudicating the motion to dismiss.
See footnote 3.
II. AGGRIEVEMENT
"Aggrievement exists in two forms: statutory and classical aggrievement. Statutory aggrievement exists by legislative fiat, not by judicial analysis of the particular facts of the case. In other words, in cases of statutory aggrievement, particular legislation grants standing to those who claim injury to an interest protected by that legislation." (Internal quotation marks omitted.) Fleet National Bank's Appeal from Probate, 267 Conn. 229, 242 n. 10, 837 A.2d 785 (2004).
Classical aggrievement, in the case of probate appeals, is embodied in the right to appeal pursuant to General Statutes § 45a-186(a). Id. Section 45a-186(a) states in relevant part: "Any person aggrieved by any order, denial or decree of a court of probate in any matter, unless otherwise specially provided by law, may . . . appeal therefrom to the Superior Court."
"Classical aggrievement . . . requires an analysis of the particular facts of the case in order to ascertain whether a party has been aggrieved and, therefore, has standing to appeal . . ."[T]he following two part test [determines] whether [classical] aggrievement exists: (1) does the allegedly aggrieved party have a specific, personal and legal interest in the subject matter of a decision; and (2) has this interest been specially and injuriously affected by the decision." (Internal quotation marks omitted.) Fleet National Bank's Appeal from Probate, supra, 267 Conn. 242 n. 10. This test requires "a possibility, as distinguished from a certainty, that some legally protected interest . . . has been adversely affected . . . This interest may be a direct pecuniary one, or it may consist of an injurious effect upon some legally protected right or status of the appellant." (Citation omitted; internal quotation marks omitted.) McBurney v. Cirillo, 276 Conn. 782, 820-21, 889 A.2d 759 (2006). "The responsibility for alleging a factual basis for aggrievement for the purpose of taking a probate appeal falls squarely on the person taking the appeal." (Internal quotation marks omitted.) Shockley v. Okeke, 92 Conn.App. 76, 83, 882 A.2d 1244 (2005).
The defendant argues that the plaintiffs are not statutorily aggrieved because the adult adoption statutes, General Statutes §§ 45a-734 and 45a-735, do not provide expressly a right of appeal or a private cause of action. The plaintiffs concede that the adoption statutes do not explicitly allow a cause of action, but claim that they are classically aggrieved with a right to appeal pursuant to General Statutes § 45a-186(a). Specifically, the legally protected interest claimed by the plaintiffs is their status as prospective heirs to Sorenson's estate. They claim that they would have received an inheritance if not for the defendant's adoption, which was not only procured through misrepresentations and undue influence, but was, also for the improper purpose of obtaining an inheritance. The defendant responds that the plaintiffs do not have standing either as prospective heirs or as relatives of Sorenson.
Section 45a-734 states in relevant part: "(a) Any person eighteen years of age or older may, by written agreement with another person at least eighteen years of age but younger than himself or herself, unless the other person is his or her wife, husband, brother, sister, uncle or aunt of the whole or half-blood, adopt the other person as his or her child, provided the written agreement shall be approved by the court of probate . . .
"(b) The Court of Probate may, upon presentation of the agreement of adoption for approval, cause public notice to be given of the time and place of hearing on the agreement. If at the hearing the court finds that it will be for the welfare of the adopted person and for the public interest that the agreement be approved, it may pass an order of approval of it and cause the agreement and the order to be recorded. Thereupon the adopted person shall become the legal child of the adopting person, and the adopting person shall become the legal parent of the adopted person, and the provisions of Section 45a-731 shall apply.
"(c) A married person shall not adopt a person under the provisions of this section unless both husband and wife join in the adoption agreement, except that the Court of Probate may approve an adoption agreement by either of them upon finding that there is sufficient reason why the other should not join in the agreement.
"(d) When one of the biological parents of an adult has died and the surviving parent remarries, the person with whom the remarriage is celebrated may become an adopting parent without the biological parent's joining in the adoption except to consent in writing. Upon the approval of the court, the adopted person shall be in law the child of both."
Section 45a-735 states: "An agreement of adoption between persons of the age of majority shall not be approved without the written consent of the husband or wife, if any, of the adopted person."
The plaintiffs do not argue or allege in their complaint that they have standing because they are relatives of Sorenson. The defendant is correct that their family relationship, by itself, is insufficient to provide standing as a legal representative for Sorenson's interests. "One who has the legal duty to protect the interests of another has standing to appeal an order which adversely affects those interests . . . The random assertion that [the appellant] has `responsibility' for the incompetent's care is not equivalent to a claim that [the appellant] is her legal representative." Maloney v. Taplin, 154 Conn. 247, 251, 224 A.2d 731 (1966) (nephew lacked standing to appeal the appointment of conservator on behalf of incompetent aunt); see also Fitzhugh v. Fitzhugh, 156 Conn. 625, 239 A.2d 513 (1968) (child of incompetent parent lacked standing to appeal approval of accounting by conservatrix); Doyle v. Reardon, supra, 11 Conn.App. 304 ("The plaintiff has no legally protected interest in the estate of Lena Doyle solely by virtue of his blood relationship to her as her grandson . . ."). The remainder of this decision will focus on the plaintiffs' standing as prospective heirs.
Though there are no Connecticut cases directly addressing aggrievement in the context of an appeal to an adult adoption, Connecticut law does not consider the expectancy of an inheritance to be a legally protected interest to establish standing. "The mere possibility of future inheritance cannot support an appeal by one who is not otherwise directly aggrieved . . . The allowance of such appeals, which would invite actions based on speculation rather than on actual fact, would be directly contrary to the principle that an appellant must have a real interest in the matter in controversy." (Citations omitted.) Maloney v. Taplin, 154 Conn. 247, 250-51, 224 A.2d 731 (1966) (nephew and former ward lacked standing as a potential heir to challenge the appointment of conservator for aunt's estate); see also Gaynor v. Payne, 261 Conn. 585, 592, 804 A.2d 170 (2002) ("[An] [e]xpectancy is the bare hope of succession to the property of another, such as may be entertained by an heir apparent . . . It has no attribute of property, and the interest to which it relates is at the time nonexistent and may never exist"). Connecticut courts consistently have denied standing due to this principle in probate appeals. See Doyle v. Reardon, supra, 11 Conn.App. 297 (grandson denied standing as heir to appeal decision of probate court to allow conservator to investigate property transfer); Creedon v. Astley-Bell, Superior Court, judicial district of Litchfield, Docket No. CV 06 4004882 (October 16, 2006, Pickard, J.) [ 42 Conn. L. Rptr. 184] (nieces and nephews of incapable person denied standing to appeal probate court's denial of motion from conservator); Rizzo v. Rizzo, Superior Court, judicial district of Middlesex, Docket No. 68719 (October 15, 1993, Walsh, J.) [ 10 Conn. L. Rptr. 251]; In the Matter of Maceslin, Superior Court, judicial district of Litchfield, Docket No. CV 93 0064048 (February 18, 1994, Walsh, J.) [ 11 Conn. L. Rptr. 104].
Several other jurisdictions have held that potential heirs have standing where the adult adoption was alleged to be the product of fraud and undue influence. E.g., In re Estate of Reid, 825 So.2d 1 (Miss. 2002) (petitioner who was potential heir of decedent and would have inherited from her but for adult adoption had standing to attack adoption on ground that defendant exerted undue influence on decedent and defrauded the court to attain adoption); In re Sewall, 242 Cal.App.2d 208, 51 Cal.Rptr. 367 (1966) (same); Raymond v. Cooke, 226 Mass. 326, 115 N.E. 423 (1917) (same). Nevertheless, these decisions are inconsistent with Connecticut precedent regarding the standing of potential heirs, and they are not unanimous. In Hurt v. Noble, 1991 Ok.Civ.App. 59, 817 P.2d 744, 746 (1991), the court denied standing to a potential heir to challenge an adult adoption for reasons consistent with Connecticut law: "Prospective heirs, or those who believe they will be heirs or beneficiaries when someone dies, do not have any legal interest in the assets of that living person because such right or interest, if any, that they might acquire in the estate of the decedent does not accrue until the time of death . . . At the time of the adoption, [the decedent] was still alive and [the plaintiffs] were not `aggrieved parties' with standing to appeal the adoption . . ." (Citation omitted.)
The authority from other jurisdictions cited by the plaintiffs are unavailing. The plaintiffs cite to In re Adoption of P., 193 N.J. Super. 33, 471 A.2d 1220 (1983), In re Adoption of Swanson, 623 A.2d 1095, 1096 (Del. 1933) and In re Jones, 122 R.I. 716, 411 A.2d 910 (1980), for the proposition that a filial relationship between the parties is required in order to uphold an adult adoption. None of these decisions, though, address the issue of aggrievement or were appeals brought by parties similar to the plaintiffs.
The plaintiffs, at the time of the adult adoption, were merely prospective heirs to Sorenson's estate. Such prospective inheritance rights are not legally protected interests for the purposes of aggrievement, and the plaintiffs assert no other legally protected interest that would provide them standing to appeal the adult adoption.
For the foregoing reasons, the defendant's motion to dismiss is granted.
This 24th day of January 2011